Muris Muvazaası in Turkey: Challenging Sham Property Transfers Made to Disinherit Heirs
One of the most common inheritance disputes in Turkey arises when a parent, during their lifetime, transfers a property at the land registry to only one of their children or to another person, recording it as a “sale” although no price is actually paid. Such transactions, made to deprive the other heirs of their inheritance, are called muris muvazaası (collusive or sham transfer by the deceased) under Turkish law. In such cases, the heirs can file an action for cancellation of title and registration (tapu iptal ve tescil davası) and request that the property be registered in their names in proportion to their inheritance shares.
This article by Yetkiner Law Firm explains what muris muvazaası is, the conditions of the lawsuit, the criteria courts use to identify a sham transfer, who can file the lawsuit, time limits, evidence, the competent court and the difference from an action for reduction, under the Turkish Civil Code and the case law of the Court of Cassation.
In Brief: Muris Muvazaası
- A transfer in which the deceased records a property as a sale at the land registry, while actually giving it away for free in order to deprive the heirs, is considered muris muvazaası.
- After the death of the deceased, the heirs may file an action for cancellation of title and registration and request registration of the property in their names in proportion to their shares.
- The action based on muris muvazaası is not subject to any limitation period.
- The sham transaction can be proven by any kind of evidence, including witnesses.
- The competent court is the civil court of first instance at the place where the property is located.
What Is Muris Muvazaası?
A sham transaction (muvazaa) is one in which the parties enter into a transaction that does not reflect their true intention in order to deceive third parties. In muris muvazaası, the deceased (muris) intends to transfer the property without consideration, but records the transaction at the land registry as a sale in order to deceive the heirs. The apparent transaction is a sale; the hidden transaction is a gift.
Under the Unification of Case Law Decision of the Court of Cassation dated 1 April 1974, No. 1/2, the apparent sale is invalid because it does not reflect the true intention of the parties, and the hidden gift is invalid because it was not made in the official form required for gifts of real estate. The heirs who have been deprived of their inheritance may therefore claim that the transaction is invalid and request registration of the property in their names in proportion to their shares.
Common Examples in Practice
- A father transferring his house or land to his son as a “sale” in order to exclude his daughters,
- The deceased transferring properties to a second spouse or to children from a second marriage in the form of a sale,
- A property being transferred to grandchildren or third parties without any price actually being paid,
- A transfer made in the form of a “lifelong care agreement” where no real care relationship existed.
Conditions of the Lawsuit
For the action for cancellation of title and registration to succeed, the following conditions must be met together:
- The deceased must have died: The lawsuit can only be filed after the death of the deceased.
- The property must have been registered in the name of the deceased: The transferred property must have belonged to the deceased at the time of transfer. If the property was purchased directly in another person’s name from the outset, the 1974 decision does not apply.
- An apparent sale but an actual gift: A sale or another transaction for consideration must have been recorded at the land registry, while no price was actually paid.
- Intention to deprive the heirs: The deceased’s main purpose must have been to deprive the heirs of their inheritance. This intention is the most important element of the lawsuit.
How Do Courts Identify a Sham Transfer?
Since the intention to deprive heirs is an inner intention that can rarely be documented directly, the courts determine it by evaluating all the circumstances of the case together. The main criteria considered are:
- Whether the deceased had a reasonable need to sell the property,
- Whether there is a clear difference between the sale price and the actual value of the property at the time of transfer,
- Whether the buyer had the financial means to pay the price and whether payment can be proven,
- Whether the deceased’s assets increased after the sale,
- Family relations between the deceased and the heirs, such as estrangement or favouritism towards one child,
- Whether the deceased continued to use the property after the transfer,
- Local customs, such as a tendency not to leave property to daughters.
On the other hand, where the deceased made a reasonable benefit to a child who cared for them for a long time out of gratitude, or where most of the estate was left to the other heirs, the intention to deprive the heirs may not be accepted. Each case is assessed on its own facts.
Who Can File the Lawsuit and Against Whom?
Each heir who has been deprived of the inheritance may file the lawsuit alone, in proportion to their own share, without the other heirs having to join. If one heir does not file a lawsuit or withdraws, this does not affect the rights of the others. A certificate of inheritance (veraset ilamı) must be obtained before filing.
The lawsuit is filed against the person registered as the owner at the land registry, that is, the apparent buyer. If the buyer has died, the lawsuit is directed against their heirs. If the buyer has transferred the property to a third party acting in good faith, that third party’s acquisition is protected because they relied on the land registry (Turkish Civil Code, Article 1023), and cancellation of title cannot be requested. In that case, compensation equal to the value of the property may be claimed from the person who acquired it through the sham transaction.
Limitation Period, Evidence and Competent Court
Limitation Period
According to the case law of the Court of Cassation, the action for cancellation of title and registration based on muris muvazaası is not subject to any limitation or time-bar period. The fact that many years have passed since the transfer does not prevent the lawsuit. However, as witnesses and documents become harder to find over time, filing without delay is important for evidence.
Evidence
Since the heirs are not parties to the sham transaction, they can prove it by any kind of evidence, including witnesses. Land registry records and the sale deed, expert reports on the value of the property at the time of transfer, bank records, the buyer’s income at that time and statements of neighbours and relatives are commonly used. The court also conducts an on-site inspection to determine the value of the property at the time of transfer.
Competent Court
The competent court for actions for cancellation of title and registration is the civil court of first instance. For lawsuits concerning rights in rem over real estate, the court where the property is located has exclusive jurisdiction (Code of Civil Procedure, Article 12). For example, for a property in Bornova, Buca or Karşıyaka, the lawsuit is filed before the İzmir civil courts of first instance. Mediation is not mandatory for these lawsuits.
Court Fees and Costs
Actions for cancellation of title and registration are subject to proportional court fees calculated on the value of the property corresponding to the claimant’s share. Expenses for the on-site inspection, expert reports and service of documents are also among the main costs. The successful party may recover its litigation costs from the other party at the end of the proceedings.
Muris Muvazaası and the Action for Reduction
Muris muvazaası and the action for reduction (tenkis) are often confused. In muris muvazaası, the invalidity of the transaction is claimed and the property is registered in the heirs’ names in proportion to their shares. In an action for reduction, the heir requests that valid gifts or testamentary dispositions be reduced to the extent that they infringe the heir’s reserved share. For the form requirements of wills and how a will can be challenged, see Making a Will in Turkey.
The action for reduction must be filed within one year of the heir learning that the reserved share has been infringed, and in any case within ten years of the opening of the succession (Turkish Civil Code, Article 571). The muris muvazaası action is not subject to a time limit. In practice, heirs often file both claims together on an alternative basis: primarily cancellation of title based on muris muvazaası, and alternatively reduction if the first claim is rejected. This protects the reserved share even if the sham transaction cannot be proven.
Frequently Asked Questions
Can I file a lawsuit while my parent is still alive?
No. The action based on muris muvazaası can only be filed after the death of the deceased. While the parent is alive, the status of heir has not yet arisen, so transfers cannot be challenged as an heir.
Can the lawsuit be filed many years after the sale?
Yes. Since the action based on muris muvazaası is not subject to a limitation period, it can be filed years after the transfer. However, the one-year and ten-year limits for the action for reduction should be kept in mind.
Is a low price declared at the land registry enough to prove a sham transfer?
No. Declaring a low price at the land registry is common in practice for tax and fee reasons and is not, on its own, proof of a sham transaction. The court evaluates the difference between the real value of the property and the price allegedly paid, together with all other circumstances.
Can transfers made under a lifelong care agreement be cancelled?
A lifelong care agreement is a valid type of contract. However, if it is proven that the deceased did not need care, that the care obligation was not fulfilled or that the agreement was made only to deprive the heirs, such transfers can also be cancelled on the basis of muris muvazaası.
Can heirs living abroad file this lawsuit?
Yes. Heirs living abroad can file the lawsuit in Turkey through a lawyer appointed by a power of attorney issued at a Turkish consulate or notarised and apostilled abroad with a sworn Turkish translation. The lawsuit is filed at the court where the property is located.
Conclusion
Muris muvazaası provides important protection for heirs against properties being taken out of the estate through apparent sales made by the deceased during their lifetime. Since the outcome depends largely on proving the intention to deprive the heirs and the non-payment of the price, collecting evidence properly before filing and, where appropriate, combining the claim with an alternative claim for reduction are important. For dividing inherited properties, see Partition of Co-Owned Property in Turkey, and for an estate with debts, see Renouncing an Inheritance in Turkey.
Yetkiner Law Firm provides legal support in İzmir in English, French and Turkish in muris muvazaası, cancellation of title and registration, reduction and other inheritance disputes. For statutory and reserved shares, see Inheritance Law in Turkey. The firm can be reached through the channels on the contact page.
The information on this page has been prepared for general informational purposes and does not constitute legal advice. It is recommended to obtain legal support from a lawyer in specific cases.
